Appeal from the United States District Court for the Western District of Texas. D.C. DOCKET NUMBER W-91-CR-130. JUDGE Walter S. Smith, Jr.
Before Politz, Chief Judge, King, Garwood, Jolly, Higginbotham, Davis, Jones, Smith, Duhe, Wiener, Barksdale, Garza, and Demoss, Circuit Judges.
We have taken this case en banc for the "housekeeping" purpose of deciding whether to complete the process we began two years ago with our en banc opinion in United States v. Bachynsky.*fn1 There, we eliminated the panel's per se reversal of the defendant's conviction for failure of the district court to make reference to or explain supervised release during the plea colloquy. We instead tested the effect of that omission by conducting a "harmless error" examination as authorized by Federal Rule of Criminal Procedure 11's section (h), which was added to that Rule with the 1983 amendments. In so doing, however, we failed to repudiate our pre-amendment, jurisprudentially mandated taxonomy exercise of determining whether the plea colloquy error complained of should be categorized as a failure by the court to comply with one or more of the three "core concerns" of Rule 11,*fn2 and if so whether such failure was total or partial.
Today we acknowledge that in Bachynsky we went only halfway when we approved application of section (h)'s harmless error test to an imperfection in the plea colloquy, all the while continuing to embrace the pre-section (h) rubric of total or partial failures and core or non-core concerns. We now go the remaining "half the distance to the goal" of fully embracing section (h) by relegating that pre-amendment double dichotomy "into the dustbin of [the jurisprudential] history"*fn3 of this circuit, replacing it entirely with the pure harmless error examination that was intended by adoption of section (h).*fn4 Henceforth, no failure in the plea colloquy -- -- regardless of whether it might be one of omission or commission, total or partial, core or non-core -- -- will mandate an automatic reversal of a conviction and vacatur of a sentence. Rather, reversal and vacatur will be required when -- -- but only when -- -- the challenged "variance from the procedures required by [Rule 11] . . . affects substantial rights" of the defendant.*fn5 In other words, when an appellant claims that a district court has failed to comply with Rule 11, we shall conduct a straightforward, two-question "harmless error" analysis: (1) Did the sentencing court in fact vary from the procedures required by Rule 11, and (2) if so, did such variance affect substantial rights of the defendant?
We shall conduct our review of each Rule 11 challenge solely on the basis of the record on appeal -- -- principally the transcript of the plea colloquy hearing but also other portions of the record, such as any written plea agreement, the transcript of the sentencing hearing, and the sentence actually imposed.*fn6 When we review post-plea colloquy sources, however, we shall consider only such information contained therein as is temporally relevant to the voluntary and uncoerced nature of the defendant's guilty plea, and to his knowledge and understanding of the nature of the charges and the consequences of his plea.
Finally, overarching the rule and the review procedure we announce today is our solemn admonition that nothing in this opinion should be construed as condoning even the slightest diminution in the degree of diligence that the district courts of this circuit are expected to devote to complying fully with both the letter and the spirit of Rule 11 in every instance.
Defendant-Appellant Michael Anthony Johnson pleaded guilty to one count of distribution of cocaine within 1,000 feet of a school playground, in violation of 21 U.S.C. §§ 841(a) and 860(a), and one count of unauthorized acquisition and possession of food stamps, in violation of 7 U.S.C. § 2024(b). During the Rule 11 plea colloquy,*fn7 the district court informed Johnson of the maximum statutory penalty and supervised release term,*fn8 but neglected to advise him that 21 U.S.C. § 860(a) carries a mandatory minimum penalty of one year imprisonment. Just before the district court accepted the plea, Johnson's attorney intervened to place his own dialogue with Johnson on the record.*fn9 After Johnson acknowledged that he had been informed by counsel that Johnson would be subject to a sentence enhancement under U.S.S.G. § 4B1.1 as a career offender, the following exchange took place:*fn10
[Counsel]: Okay. And you understand that you're looking in the neighborhood of 262 to 327 months, which is 21 years to 27 years, under the Federal Sentencing Guidelines. You understand that, do you not?
Defendant Johnson: Yes, Sir.
[Counsel]: And understanding that and my explaining to you two days ago or three days ago and then again -- -- and then again today, do you ...